Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Boswal v. John Lockiiart
Date: 12 July 1698
Click here to view a pdf copy of this documet : PDF Copy
I reported Boswal, glazier in Edinburgh, against John Lockhart, now of Lee. The deceased Cromwell Lockhart of Lee employed this glazier to repair and furnish his house of Lee with new glass, which extended to £200. Cromwell dying shortly after, Boswal applies to Richard, his heir, and obtains bis bond for the sum, with this narrative, That it was for work done to his elder brother, Cromwell. He also deceasing, Boswal raises a process against John Lockhart, now of Lee, for payment.
Alleged,—Richard, the granter of the bond, was but a qualified restricted tiar, under irritancies, and prohibitory clauses de non alienando et non contrahendo debitum; and so the bond can neither affect the tailyied estate, nor yet him, as heir of entail.
Answered,—The bond is not for Richard's own debt, but bears expressly to be Cromwell's debt; and, he being the maker of the tailyie, it is plain, from law, the same falls not under the prohibition of the tailyie, as Stair shows, tit. 18, book 4, page 591; and, though the assertion of an heir of tailyie, that it is his predecessor's debt, cannot be probative, else he might continue debt enough on the estate, yet, to put the case beyond all debate, he offered to prove, in fortification of the narrative of this bond, the work was so truly wrought to Cromwell in his time, and so adminiculate and astruct the verity of its narrative.
Replied,—Neither the bond nor its narrative being obligatory, the same could not be now made up by a probation by witnesses, because the account fell under the triennial prescription of Act 83, Parliament 1579; otherwise a debt might be made up against a tailyied estate after it was prescribed.
Duplied,—He needed not pursue within the three years, in this case, because the bond interrupted the prescription; and, though it may be null as to other effects, yet it is always sustained to have the effect of an interruption where I offer to prove the account, even as a bond given by a minor is null; yet, if I instruct it was in rem versum, it will be sustained.
Tiuplied,—To make this acknowledgment and narrative an interruption, is to open a door to all fraud for subverting of tailyies; and this pursuer was in mora in not constituting his debt against the first contractor, at least the debtor in the bond.
The Lords found it relevant to sustain the narrative of the bond, so as to affect the tailyied estate, if the pursuer prove the work was truly furnished to Cromwell, the maker of the tailyie, and that it extended to the value of the sum in the bond, and was not prescribed, but within three years of the furnishing, when the bond was granted. All which cautions were adhibited to prevent collusive debts upon entailed estates.
